Therefore, the Department proposes to amend section 151-1.3(e) of the Commissioner’s regulations to conform with the amendments made by Chapter 56. Specifically, the proposed amendment:

• removes the requirement that eligible agencies collaborating with the district to provide Pre-K services maintain a written plan to obtain a certification valid for service in the early childhood grades within five years;

• removes the language which permits staff of eligible agencies collaborating with the district to provide prekindergarten services to have a bachelor’s degree in a field related to early childhood education; and

• removes an outdated provision contained in 151-1.3(e)(1)(iv) that was only applicable until the beginning of the 2008-2009 school year and replaces that subparagraph with the waiver process. The proposed subparagraph provides, consistent with Chapter 56, that a school district may annually apply to the Commissioner by August first of the current school year for a waiver that would allow personnel employed by an eligible agency that is collaborating with such school district to provide Pre-K services, and licensed by an agency other than the Department, to meet the staff qualification prescribed by the licensing or registering agency.

Thus, the proposed rule requires that staff of eligible agencies collaborating with the district to provide Pre-K services have a bachelor’s degree in early childhood education or a teaching license or certificate valid for services in the childhood grades. If such staff lack these qualifications, the district must obtain a waiver from the Department as a condition of their employment.

Additionally, the Department proposes to amend 151-1.3(e)(2) regarding on-site education directors. Currently, unless all UPK teachers at eligible agency sites possess a teaching license or certificate valid for services in the early childhood or childhood grades, the agencies operating such programs must employ an on-site education director who is responsible for program implementation. The Department recognizes that, due to teacher shortages, it may be difficult for UPK programs to hire an on-site education director with the above qualifications. Therefore, the Department proposes to permit agencies to employ an on-site education director who possesses a bachelor’s degree or higher in early childhood education, provided that such individual develops a written plan to obtain a certification valid for service in the early childhood grades within five years of the date such individual begins employment as a site director. Such plans must be submitted to the Department by October 31 of each year. Additionally, the school district must oversee program implementation by the eligible agency until the on-site education director meets the requisite on-site education director qualifications.

The proposed amendment was presented to the P-12 Education Committee for recommendation to the Full Board for adoption as an emergency rule at the September 2022 meeting of the Board of Regents, effective September 13, 2022. Since the Board of Regents meets at fixed intervals, the earliest the proposed amendment could be adopted by regular (nonemergency) action after expiration of the 60-day public comment period provided for in the State Administrative Procedure Act (SAPA) sections 201(1) and (5) would be the January 2023 Regents meeting. Furthermore, pursuant to SAPA 203(1), the earliest effective date of the proposed rule, if adopted at the January 2023 meeting, would be January 25, 2023, the date the Notice of Adoption would be published in the State Register.

However, the emergency rule will expire on December 11, 2022. Therefore, emergency action is necessary at the November 2022 meeting, effective December 12, 2022, for the preservation of the general welfare to immediately conform Commissioner’s regulations with the amendments made to Education Law § 3602-e by Part A of Chapter 56 of the laws of 2022, which took effect April 1, 2022, and to ensure the emergency action taken at the September meeting remains continuously in effect until the rule can be permanently adopted.

It is anticipated that the proposed rule will be presented to the Board of Regents for adoption as a permanent rule at the January 2023 meeting, which is the first scheduled meeting after expiration of the 60-day public comment period mandated by SAPA for state agency rulemaking.

(e) Staff qualifications.

(1) Prekindergarten teachers providing instruction through this Part shall possess:

(i) a teaching license or certificate valid for service in the early childhood grades pursuant to Part 80 of this Title; or

(ii) a teaching license or certificate for students with disabilities valid for service in early childhood grades pursuant to Part 80 of this Title; or

(iii) for eligible agencies collaborating with the district to provide prekindergarten services, a bachelor's degree in early childhood education [or a related field,] or a teaching license or certificate valid for services in the childhood grades pursuant to Part 80 of this Title[, and a written plan to obtain a certification valid for service in the early childhood grades within five years]; or

(iv) [eligible agencies collaborating with the district to provide prekindergarten services and licensed by an agency other than the State Education Department may employ staff who meet the standards of the licensing or registering agency, until the beginning of the 2008-2009 school year, at which time all prekindergarten teachers shall meet the qualifications set forth in subparagraphs (i)-(iii) of this paragraph.] a school district may annually apply to the Commissioner by August first of the current school year, on a form and format prescribed by the Commissioner, for a waiver that would allow personnel employed by an eligible agency that is collaborating with such school district to provide prekindergarten services, and licensed by an agency other than the department, to meet the staff qualifications prescribed by the licensing or registering agency.

(2) [Until] Unless all universal prekindergarten teachers at an eligible agency site possess a teaching license or certificate valid for services in the early childhood or childhood grades, the agencies operating such programs shall employ an on-site education director during the hours that the prekindergarten program is in operation that will be responsible for program implementation.

(i) The on-site director shall possess a teaching license or certificate valid for services in the early childhood or childhood grades pursuant to Part 80 of this Title.

(ii) Notwithstanding subparagraph (i) of this paragraph, if the agencies operating such programs are unable to employ an on-site education director who meets the qualifications prescribed in such subparagraph, they may employ an on-site education director who possesses a bachelor’s degree or higher in early childhood education, and a written plan to obtain a certification valid for service in the early childhood grades within five years of the date such individual begins employment as a site director. Such plan shall be submitted to the Department by October 31 of each year in a form and format as prescribed by the Commissioner. The school district shall oversee program implementation by the eligible agency until the on-site education director meets the qualifications prescribed in subparagraph (i) of this paragraph.

(3) A prekindergarten teaching assistant providing instructional support in a prekindergarten classroom shall meet qualifications pursuant to Part 80 of this Title.

(4) A prekindergarten teacher aide providing support in a prekindergarten classroom shall meet the requirements prescribed by the local board of education.

Education Law § 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.

Education Law § 207 empowers the Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.

Education Law § 305(1) and (2) provide that the Commissioner, as chief executive officer of the State’s education system, with general supervision over all schools and institutions subject to the Education Law, or of any statute relating to education, and responsibility for executing all educational policies of the Board of Regents.

Education Law § 3602-e(12) authorizes the Regents and the Commissioner to adopt regulations to implement the provisions of that section, relating to universal prekindergarten programs.

Part A of Chapter 56 of the Laws of 2022 amended Education Law § 3602-e(12)(d) to require that the Board of Regents adopt regulations to establish an annual process by which a district that is collaborating with an eligible agency to provide Pre-Kindergarten (Pre-K services) may apply to the Commissioner by August first of a given year for a waiver from the staff qualifications requirements provided that such staff are: (1) licensed and registered by an agency other than the Department; and (2) meet the standards of the “licensing or registering” agency.

LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement changes to Education Law section 3602-e, as amended by Part A of Chapter 56 of the Laws of 2022.

NEEDS AND BENEFITS:

The Enacted State Budget, (L. 2022, C. 56, Part A or “Chapter 56”), amended section 3602-e(12)(d) of the Education Law in relation to staffing qualifications for Universal Prekindergarten Programs (UPK), effective April 1, 2022. The Enacted State Budget also made similar amendments to Education Law § 3602-ee in relation to staffing qualifications for Statewide Universal Full-Day Pre-Kindergarten Programs (SUFDPK). Part 151 of the Commissioner’s regulations as currently written, however, is only applicable to UPK.

Prior to this amendment, Education Law § 3602-e(12)(d-1) required the Board of Regents to adopt regulations that permitted employees of an eligible agency that is collaborating with a district to deliver Pre-K services without early childhood certification so long as they: (1) were licensed and registered by an agency other than the Department; (2) met the standards of the “licensing or registering” agency; and (3) developed a written plan to obtain early childhood certification within five years of commencing employment or by June 30, 2022, whichever was later. Education Law § 3602-e(12)(d-2) imposed a similar requirement for programs that were not licensed or registered by the Department or other agency.¹ Both provisions required that districts annually submit a report to the Commissioner regarding (i) barriers to certification, if any, (ii) the number of uncertified teachers teaching pre-kindergarten in the district, including those employed by a community-based organization, (iii) how long such teachers have been employed under transitional guidelines, and (iv) the expected certification completion date of such teachers. These provisions expired on June 30, 2022 and are no longer in effect.

The amendments made to Education Law § 3602-e by Chapter 56 now require that the Board of Regents adopt regulations to establish an annual process by which a district may apply to the Commissioner by August first of a given year for a waiver from the staff qualifications requirements. It is identical to the waiver provision described above, except that it does not require employees subject to the waiver to obtain early childhood certification. Chapter 56 made similar amendments to Education Law § 3602-ee.

In addition, these amendments removed the language permitting staff of eligible agencies from being qualified to provide SUFDPK services if they have a bachelor’s degree in a field related to early childhood education. Now such staff must have a bachelor’s degree in early childhood education or obtain a waiver from the Department.

Therefore, the Department proposes to amend section 151-1.3(e) of the Commissioner’s regulations to conform with the above statutory amendments. Specifically, the proposed amendment:

• removes the requirement that eligible agencies collaborating with the district to provide Pre-K services maintain a written plan to obtain a certification valid for service in the early childhood grades within five years;

• removes the language that permits staff of eligible agencies, collaborating with the district to provide prekindergarten services, to have a bachelor’s degree in a field related to early childhood education. This amendment aligns the UPK requirements with the requirements for SUFDPK described above; and

• removes an outdated provision contained in 151-1.3(e)(1)(iv) that was only applicable until the beginning of the 2008-2009 school year and replaces that subparagraph with the waiver process. The proposed subparagraph provides, consistent with Chapter 56, that a school district may annually apply to the Commissioner by August first of the current school year as described above.

Thus, the proposed rule requires that staff of eligible agencies collaborating with the district to provide Pre-K services have a bachelor’s degree in early childhood education or a teaching license or certificate valid for services in the childhood grades. If such staff lack these qualifications, the district must obtain a waiver from the Department as a condition of their employment.

Additionally, the Department proposes to amend 151-1.3(e)(2) regarding on-site education directors. Currently, unless all UPK teachers at eligible agency sites possess a teaching license or certificate valid for services in the early childhood or childhood grades, the agencies operating such programs must employ an on-site education director who is responsible for program implementation. The Department recognizes that, due to teacher shortages, it may be difficult for UPK programs to hire an on-site education director with the above qualifications. Therefore, the Department proposes to permit agencies to employ an on-site education director who possesses a bachelor’s degree or higher in early childhood education, provided that such individual develop a written plan to obtain a certification valid for service in the early childhood grades within five years of the date such individual begins employment as a site director. Such plans must be submitted to the Department by October 31 of each year. Additionally, the school district must oversee program implementation by the eligible agency until the on-site education director meets the requisite on-site education director qualifications.

COSTS:

The proposed amendment is necessary to implement Education Law section 3602-e, as amended by Part A of Chapter 56 of the Laws of 2022, and will not impose any costs beyond those inherent in the statute.

(a) Costs to State government: None.

(b) Costs to local government: Universal Prekindergarten is not a mandated program. For school districts opting to participate, the proposed amendment relates to staffing qualifications for staff of eligible agencies collaborating with a district to provide Pre-K services and qualifications for on-site education directors. It is not expected to have a cost impact on school districts.

(c) Costs to private regulated parties: The proposed amendment relates to staffing qualifications for staff of eligible agencies collaborating with a district to provide Pre-K services and qualifications for on-site education directors. It is not expected to have a cost impact on eligible agencies or their staff, or on-site education directors.

(d) Costs to regulating agency for implementation and continued administration of this rule: None.

LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to conform the Commissioner's Regulations to Education Law § 3602-e, as amended by Part A of Chapter 56 of the Laws of 2022, and does not impose any additional program, service, duty or responsibility on local governments. Universal Prekindergarten is not a mandated program.

PAPERWORK:

The proposed rule imposes no new reporting or other paperwork requirements beyond those imposed by the statute. Consistent with Education Law § 3602-e, as amended by Part A of Chapter 56 of the Laws of 2022, the proposed rule requires that districts apply to the Commissioner by August first of a given year for a waiver from the staff qualifications requirements.

DUPLICATION:

The proposed amendment does not duplicate existing State or Federal requirements.

ALTERNATIVES:

In developing the proposed amendment, the Department reviewed the requirements established for prekindergarten programs in several other states. Staff reviewed the quality program benchmarks established by the National Institute for Early Education Research, which publishes the annual State Preschool Yearbook, to identify areas of "best practice" where New York State could strengthen its requirements. In addition, staff reviewed and discussed a comparison of targeted and universal prekindergarten program requirements to identify areas where greater consistency could be achieved.

FEDERAL STANDARDS:

There are no related federal standards.

COMPLIANCE SCHEDULE:

The proposed rule takes effect as an emergency rule September 13, 2022. It is anticipated that the proposed amendment will be presented for permanent adoption at the January 2023 Regents meeting, after publication of the proposed amendment in the State Register and expiration of the 60-day public comment period required under the State Administrative Procedure Act. Because the emergency action will expire before the January 2023 Regents meeting, it is anticipated that an additional emergency action will be presented for adoption at the November 2022 meeting. If adopted at the January 2023 meeting, the proposed amendment will become effective as a permanent rule on January 25, 2023. It is anticipated that regulated parties will be able to comply with the proposed amendment by the effective date.

¹ The compliance date, if applicable, was June 30, 2020 for these employees (as opposed to June 30, 2022).

Small Businesses:

The proposed amendment merely conforms section 151-1.3 of the Commissioner's Regulations to the provisions of Section 3602-e of Education Law as amended by Part A of Chapter 56 of the Laws of 2022, relating to universal prekindergarten programs operated by public school districts, and does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that small businesses will not be affected, no further measures are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

EFFECT OF RULE:

The proposed amendment applies to all universal prekindergarten programs operated by public school districts collaborating with eligible agencies.

COMPLIANCE REQUIREMENTS:

The proposed amendment:

• removes the requirement that eligible agencies collaborating with the district to provide Pre-K services maintain a written plan to obtain a certification valid for service in the early childhood grades within five years;

• removes the language that permits staff of eligible agencies, collaborating with the district to provide prekindergarten services, to have a bachelor’s degree in a field related to early childhood education. This amendment aligns the UPK requirements with the requirements for SUFDPK described above; and

• removes an outdated provision contained in 151-1.3(e)(1)(iv) that was only applicable until the beginning of the 2008-2009 school year and replaces that subparagraph with the waiver process. The proposed subparagraph provides, consistent with Chapter 56, that a school district may annually apply to the Commissioner by August first of the current school year as described above.

Thus, the proposed rule requires that staff of eligible agencies collaborating with the district to provide Pre-K services have a bachelor’s degree in early childhood education or a teaching license or certificate valid for services in the childhood grades. If such staff lack these qualifications, the district must obtain a waiver from the Department as a condition of their employment.

Additionally, the Department proposes to amend 151-1.3(e)(2) regarding on-site education directors. Currently, unless all UPK teachers at eligible agency sites possess a teaching license or certificate valid for services in the early childhood or childhood grades, the agencies operating such programs must employ an on-site education director who is responsible for program implementation. The Department recognizes that, due to teacher shortages, it may be difficult for UPK programs to hire an on-site education director with the above qualifications. Therefore, the Department proposes to permit agencies to employ an on-site education director who possesses a bachelor’s degree or higher in early childhood education, provided that such individual develop a written plan to obtain a certification valid for service in the early childhood grades within five years of the date such individual begins employment as a site director. Such plans must be submitted to the Department by October 31 of each year. Additionally, the school district must oversee program implementation by the eligible agency until the on-site education director meets the requisite on-site education director qualifications.

PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional services requirements on school districts.

COMPLIANCE COSTS:

The proposed amendment is necessary to implement Education Law section 3602-e, as amended by Part A of Chapter 56 of the Laws of 2022, and does not impose any additional costs beyond those inherent in the statute.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose new technological requirements on school districts. Economic feasibility is address in the Compliance Cost section above.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to conform the Commissioner’s regulations to Part A of Chapter 56 of the Laws of 2022. Consequently, the majority of the proposed rule is statutorily imposed, and it is not feasible to establishing differing requirements or to exempt school districts and eligible agencies from coverage by the rule. However, it is not anticipated that the proposed rule will have an adverse economic impact on small businesses or local governments, as the proposed rule provides for a waiver of the staff qualification requirements for staff of eligible agencies collaborating with a district to provide Pre-K services. Additionally, the proposed rule provides flexibility for the qualifications of on-site education directors. No alternatives were considered.

LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State. In addition, the proposed amendment will be disseminated to the Early Childhood Advisory Council.

TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment applies to all school districts in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment:

• removes the requirement that eligible agencies collaborating with the district to provide Pre-K services maintain a written plan to obtain a certification valid for service in the early childhood grades within five years;

• removes the language that permits staff of eligible agencies, collaborating with the district to provide prekindergarten services, to have a bachelor’s degree in a field related to early childhood education. This amendment aligns the UPK requirements with the requirements for SUFDPK described above; and

• removes an outdated provision contained in 151-1.3(e)(1)(iv) that was only applicable until the beginning of the 2008-2009 school year and replaces that subparagraph with the waiver process. The proposed subparagraph provides, consistent with Chapter 56, that a school district may annually apply to the Commissioner by August first of the current school year as described above.

Thus, the proposed rule requires that staff of eligible agencies collaborating with the district to provide Pre-K services have a bachelor’s degree in early childhood education or a teaching license or certificate valid for services in the childhood grades. If such staff lack these qualifications, the district must obtain a waiver from the Department as a condition of their employment.

Additionally, the Department proposes to amend 151-1.3(e)(2) regarding on-site education directors. Currently, unless all UPK teachers at eligible agency sites possess a teaching license or certificate valid for services in the early childhood or childhood grades, the agencies operating such programs must employ an on-site education director who is responsible for program implementation. The Department recognizes that, due to teacher shortages, it may be difficult for UPK programs to hire an on-site education director with the above qualifications. Therefore, the Department proposes to permit agencies to employ an on-site education director who possesses a bachelor’s degree or higher in early childhood education, provided that such individual develop a written plan to obtain a certification valid for service in the early childhood grades within five years of the date such individual begins employment as a site director. Such plans must be submitted to the Department by October 31 of each year. Additionally, the school district must oversee program implementation by the eligible agency until the on-site education director meets the requisite on-site education director qualifications.

COSTS:

The proposed amendment is necessary to implement Education Law section 3602-e, as amended by Part A of Chapter 56 of the Laws of 2022, and does not impose any additional costs beyond those inherent in the statute.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to conform the Commissioner’s regulations to Part A of Chapter 56 of the Laws of 2022. Because this amendment implements statutory provisions that are applicable to school districts across the State, it was not possible to provide for a lesser standard or an exemption for school districts in rural areas. Therefore, no alternatives were considered. However, it is not anticipated that the proposed rule will have an adverse economic impact on regulated parties, including those located in rural areas, as the proposed rule provides for a waiver of the staff qualification requirements for staff of eligible agencies collaborating with a district to provide Pre-K services. Additionally, the proposed rule provides flexibility for the qualifications of on-site education directors.

RURAL AREA PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, including those located in rural areas. In addition, the proposed amendment will be disseminated to the Early Childhood Advisory Council.

The proposed amendment is necessary to conform section 151-1.3 of the Commissioner's regulations to Education Law § 3602-e, as amended by Part A of Chapter 56 of the Laws of 2022, relating to universal prekindergarten programs operated by public school districts, and will not have an adverse impact on jobs or employment activities. Because it is evident from the nature of the proposed amendment that it will have no impact on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.